Volume 40
Issue 1
Annual Survey of Texas Law
Article 13
1986
Wills and Trusts
David D. Jackson
Hartnett Ford Hartnett
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Recommended Citation
WILLS AND TRUSTS
by
David D. Jackson* and Will Ford Hartnett**
HIS Article surveys cases that offer varying degrees of enlightenment
concerning wills, nontestamentary transfers, estates, heirship, trusts, and guardianships. The opinions discussed in this Article were pub-lished during the twelve month-period ending October 15, 1985. This article also comments on changes that the Sixty-Ninth Texas Legislature made to the Texas Probate and Trust Codes.
I. WILLS
Execution of a Will. The supreme court in Orrell v. Cochran' upheld the
iron rule set forth in Boren v. Boren2 that proponents of a will cannot use signatures contained in a self-proving affidavit to validate the will. The court in Boren had considered whether the proponent of a will could supply signa-tures of witnesses from an executed self-proving affidavit. Orrell dealt with the attempted similar use of a testator's signature. In both cases the court held that the will and the self-proving affidavit were completely separate in-struments,3 and that the execution of a valid will is an absolute prerequisite to the usefulness of the self-proving affidavit.
Despite the general rules that favor testacy over intestacy4 and that allow a testator to sign the will on any page,5 the supreme court continues to inter-pret Probate Code section 596 to separate the self-proving affidavit from the will.7 The supreme court indicated that the testamentary intent behind a self-proving affidavit is immaterial.8 Although the court in Orrell clearly
* B.A., J.D, Southern Methodist University. Judge, Probate Court No. 2, Dallas County, Texas.
** B.A., Harvard University; J.D., University of Texas. Attorney at Law, James J. Hart-nett, P.C.
1. 695 S.W.2d 552 (Tex. 1985). 2. 402 S.W.2d 728 (Tex. 1966).
3. Orrell, 695 S.W.2d at 552; Boren, 402 S.W.2d at 729.
4. See Shriners Hosp. for Crippled Children v. Stahl, 610 S.W.2d 147, 151 (Tex. 1980); Haile v. Holtzclaw, 414 S.W.2d 916, 922 (Tex. 1967); Briggs v. Peebles, 144 Tex. 47, 52, 188 S.W.2d 147, 150 (1945).
5. See Ward v. First-Wichita Nat'l Bank, 387 S.W.2d 913, 915 (Tex. Civ. App.-Fort Worth 1965, writ ref'd n.r.e); McGrew v. Bartlett, 387 S.W.2d 702, 703 (Tex. Civ. App.-Houston 1965, writ ref'd); Lawson v. Dawson's Estate, 53 S.W. 64, 65 (Tex. Civ. App-1899, writ ref'd).
6. TEX. PROB. CODE ANN. § 59 (Vernon 1980).
7. Section 59 allows the execution of a self-proving affidavit even years after the execu-tion of the will. Id.
reaffirmed the Boren rule, the majority overruled the trial court, the appel-late court, and three dissenting justices, who sought to avoid the technicality.9
In another case involving validity of execution under section 59,
Muhlbauer v. Muhlbauer, 0 the appellate court pondered the issue of a testa-tor's receiving physical assistance from another person when executing his will. In a lawyer's office the wife of the blind and crippled testator guided his hand to sign a new will, in which the testator made his wife the sole beneficiary. The court affirmed the trial court's summary judgment denying probate, on the grounds that the testator had not specifically requested his wife to guide his hand and that the wife therefore did not execute the will at the testator's direction."I The court apparently also considered significant the fact that the testator, although physically capable, had not attempted to make a mark prior to the physical assistance.12 Another person, however,
may validly execute a will at the testator's request and on the testator's be-half without the testator's making any mark.13
Revocation. Presumed revocation of a will missing by destruction was at
issue in McNamara v. Hall. 14 In that case a testator, who had poor eyesight, made two copies of his will, placed one copy in an envelope marked "Will," mailed one copy to the proponent, and apparently mailed the original to the contestant, who did not testify. Because the will was not last seen in the possession of the testator, the testator having mailed the will to the contest-ant, the proponent's failure to produce the original did not raise the pre-sumption that the testator destroyed the will with the intent to revoke it. '5 Although the contestant did not testify, the appellate court held that circum-stantial evidence proved that the will was last in the possession of the con-testant.16 Another appellate court reached a similar result in In re Estate of
Caples. 17
In that case the appellate court reversed the trial court's instructed verdict denying probate of a copy of a lost will. 18 The appellate court held that evidence that the contestant may have surreptitiously removed the will from the possession of the testator sufficiently rebutted the presumption of
9. Id. A lawyer did not prepare the will in question, which was a printed form. Various witnesses testified that the testator had intended to sign the will but, by mistake, signed the self-proving affidavit. The majority deemed these facts irrelevant. Id.
10. 686 S.W.2d 366 (Tex. App.-Fort Worth 1985, no writ),
11. Id. at 377. The relevant portion of § 59 is as follows: "Every last will and testament, except where otherwise provided by law, shall be in writing and signed by the testator in person or by another person for him by his direction and in his presence. TEX. PROB.
CODE ANN. § 59 (Vernon 1980). 12. 686 S.W.2d at 377.
13. See Trezevant v. Rains, 19 S.W. 567, 568 (Tex. Civ. App.-Galveston), rev'd on other
grounds, 85 Tex. 329, 23 S.W. 890 (1892).
14. 678 S.W.2d 578 (Tex. App.-Houston [14th Dist.] 1984, no writ).
15. Id. at 580. For the presumption of revocation of missing wills, see Berry v. Griffin,
531 S.W.2d 394, 395 (Tex. Civ. App.-Houston [14th Dist.] 1975, writ rerd n.r.e.); Mingo v.
Mingo, 507 S.W.2d 310, 311 (Tex. Civ. App.-San Antonio 1974, writ refd n.r.e.).
16. 678 S.W.2d at 580.
WILLS AND TRUSTS
revocation so as to require submission to the jury.19
Contract to Make a Will. In Taylor v. Johnson2 0
an appellate court clarified the rather brief provisions of Probate Code section 59A(a).21 In that case a
nephew sued his aunt for anticipatory breach of an oral contract to make a will. The court reiterated the requirement of section 59A(a) that the exe-cuted will must describe the contract to make a will.22 The court held that evidence of an oral contract or of contractual wording in an unexecuted will was immaterial.23 Moreover, the court stated that a court should not limit the scope of section 59A to probate proceedings.24
The parties to the oral contract to make a will in Leigh v. Weiner25 made the contract prior to the effective date of section 59A(a).26 The court there-fore imposed a constructive trust on certain assets the testatrix devised in violation of the contract with her deceased husband.27 The husband, prior to his death in 1952, conveyed the assets to his wife based on her agreement to devise and bequeath the assets at her death to his children from a prior marriage. Although the widow executed a will in 1953 providing for the agreed disposition, she revoked that will in 1978 and signed a new will disin-heriting the stepchildren.28 The court held that the oral agreement estab-lishing the constructive trust was not subject to the statute of wills, the statute of frauds, or the Texas Trust Act.29 The court further held that limi-tations did not bar the suit since the contestant filed the suit within four years after the widow's death.30
Jurisdiction. The supreme court in Hilburn v. Jennings3 1 held that will con-testants, by filing a contest to the will, waived any jurisdictional complaint regarding lack of notice of the proponent's application to probate a will.32 The court reversed the appellate court and affirmed the trial court's probate
19. Id. at 743.
20. 677 S.W.2d 680 (Tex. App.-Eastland 1984, writ ref'd n.r.e.). 21. TEX. PROB. CODE ANN. § 59A(a) (Vernon 1980) provides:
A contract to make a will or devise, or not to revoke a will or devise, if executed or entered into on or after September 1, 1979, can be established only by sions of a will stating that a contract does exist and stating the material provi-sions of the contract.
22. 677 S.W.2d at 682.
23. Id.
24. Id. Note that § 59A(a) is in effect a supplement to the statute of frauds, TEX. Bus. &
COM. CODE ANN. § 26.01 (Vernon 1968).
25. 679 S.W.2d 46 (Tex. App.-Houston [14th Dist.] 1984, no writ).
26. TEX. PROB. CODE ANN. § 59A(a) (Vernon 1980) only applies to wills executed after Sept. 1, 1979.
27. 679 S.W.2d at 49.
28. The widow died five weeks later at the age of ninety-five. Id. at 47.
29. Id. at 48; see Pope v. Garrett, 147 Tex. 18, 21, 211 S.W.2d 559, 561 (1948); Ginther v. Taub, 570 S.W.2d 516, 525 (Tex. Civ. App.-Waco 1978, writ ref'd n.r.e.). Whether this general rule permits a court to impose a constructive trust despite § 59A, however, remains unclear.
30. 679 S.W.2d at 48-49. 31. 698 S.W.2d 99 (Tex. 1985). 32. Id. at 100.,
of the will.33 The supreme court did not discuss the questionable additional
holding of the appellate court that the four-year statute of limitations in
Pro-bate Code section 73(a)34 barred probate of the will as a result of the
propo-nent's failure to arrange timely posted notice of his application.35 Arguably,
however, the filing of the will contest within four years after the testator's death tolled the statute of limitations, and the posting of notice after the limitations period was immaterial.
Will Contests. Minutes before committing suicide, the testator in Bauer v. Estate of Bauer36 wrote a holographic will leaving his estate to his girlfriend and stating that his reason for committing suicide was a lack of family love. The testator's mother contested, alleging lack of testamentary capacity by reason of an insane delusion concerning the family. Citing the Lindley v.
Lindley37 definition of insane delusion as "the belief of a state of supposed
facts that do not exist, and which no rational person would believe,"'38 the
appellate court held immaterial all evidence concerning the testator's beliefs about family love, because the jury could not judge such beliefs by objective
specific facts.39 The court reiterated the general rule that evidence of an
insane delusion is relevant only if the evidence directly affects the terms of
the will.40
In Green v. Green4' the appellate court reversed the trial court's judgment
n.o.v. denying the jury's finding of undue influence.42 Following Rothermel
v. Duncan,4 3 the court distinguished the concepts of testamentary capacity
and undue influence.44 Testamentary capacity tests the existence of
intelli-gent mental power.4 5 Undue influence admits the existence of testamentary
capacity, but tests another person's control of such capacity.46 The court
based the reversal upon circumstantial evidence that a person exerted influ-ence to overpower the mind of the testator and obtain execution of the prof-fered will.47
A testatrix's naming of her attorney as a beneficiary under her will does
33. Id. The reversal effectively overruled similar appellate holdings in Mitchell v. Rutter,
221 S.W.2d 979, 981 (Tex. Civ. App.-Austin 1949, no writ), and Green v. White, 32 S.W.2d
488, 490 (Tex. Civ. App.-Waco 1930, no writ). 34. TEX. PROB. CODE ANN. § 73(a) (Vernon 1980).
35. Jennings v. Hilburn, 690 S.W.2d 298, 300 (Tex. App.-Dallas 1985).
36. 687 S.W.2d 410 (Tex. App.-Houston [14th Dist.] 1985, writ ref'd n.r.e.). 37. 384 S.W.2d 676 (Tex. 1984).
38. Id. at 679.
39. 687 S.W.2d at 413. The court believed that the concept of family love was too
subjec-tive for legal proof. Id.
40. Id. at 411; see Rich v. Rich, 615 S.W.2d 795, 797 (Tex. Civ. App.-Houston [1st Dist.] 1980, no writ); Gulf Oil Corp. v. Walker, 288 S.W.2d 173, 180-81 (Tex. Civ. App.-Beaumont 1956, no writ).
41. 679 S.W.2d 640 (Tex. App.-Houston (1st Dist.] 1984, no writ). 42. Id. at 644.
43. 369 S.W.2d 917 (Tex. 1963). 44. 679 S.W.2d at 643-44. 45. Id. at 644.
46. Id.
WILLS AND TRUSTS
not, according to the court in Dailey v. Wheat,4 8 raise a presumption that the
attorney exerted undue influence.49 The court cited the general rule that a
person may dispose of his estate to any person that he chooses, and refused to shift the burden of proof concerning undue influence from the contestant
to the proponent-attorney.50 The fact that the proponent-attorney
super-vised the drafting and the execution of the will apparently was not signifi-cant. The court further denied the contestant's allegation that Probate Code section 551 was unconstitutional because in a less populated county the jury
would have consisted of twelve jurors instead of six.52 The court held that a
rational basis for the geographical distinction existed.53
In Estate of Murphy54 the executor named in a 1959 will contested a 1979
will on the grounds that the co-executors named in the latter will procured it through undue influence, and that the contractual nature of the 1959 will barred any later wills. After a discussion of the concept of undue influence, the factors a court should consider, and the use of circumstantial evidence, the court held that no evidence supported a finding of undue influence over
the ninety-nine-year-old testatrix.55 The court apparently found significant
the fact that the 1979 will was virtually identical to the 1959 will, except for
the choice of executor.56 The court also overruled the contestant's claim
that the 1979 will was contractually barred, citing the rule that a court must probate a valid subsequent will that revokes a joint will regardless of any
contractual intent.57 The court remanded the case on two grounds. First,
the court remanded to determine whether the 1959 will was in fact
contrac-tual.58 Second, the court remanded to determine whether an intervening
1974 will, which the testatrix executed prior to the death of the other
con-tracting party, effectively revoked the 1959 contract.59 When neither an
en-forceable contract to the contrary nor fraud exist, either party to a
48. 681 S.W.2d 747 (Tex. App.-Houston [14th Dist.] 1984, writ ref d n.r.e.). 49. Id. at 755.
50. Id.; accord In re Estate of Willenbrock, 603 S.W.2d 348, 351 (Tex. Civ. App.-East-land 1980, writ ref d n.r.e.); Lipper v. Weslow, 369 S.W.2d 698, 703 (Tex. Civ. App.-Waco 1963, writ refd n.r.e.); Krahl v. Lehmann, 277 S.W.2d 792, 795-96 (Tex. Civ. App.-San Antonio), rev'd on other grounds, 155 Tex. 270, 285 S.W.2d 179 (1955); Naihaus v. Feigon, 244 S.W.2d 325, 329 (Tex. Civ. App.-Galveston 1951, writ refd n.r.e.); In re Burns' Estate, 52 S.W. 98, 100 (Tex. Civ. App. 1899, writ ref d). Contra Spillman v. Estate of Spillman, 587
S.W.2d 170, 172 (Tex. Civ. App.-Dallas 1979, writ refd n.r.e.). 51. TEX. PROS. CODE ANN. § 5 (Vernon 1980).
52. 681 S.W.2d at 758.
53. Id. In a statutory probate court or county court, TEX. PROB. CODE ANN. § 5
(Vernon Supp. 1986) limits the contestant to six jurors; on the same matter in a district court
the contestant would receive twelve jurors.
54. 694 S.W.2d 10 (Tex. App.-Corpus Christi 1985, writ ref d n.r.e.).
55. Id. at 15.
56. Id. A requisite element of undue influence is a disposition in the contested will that the testratrix would not have made but for the undue influence. See Rothermel v. Duncan, 369
S.W.2d 917, 922 (Tex. 1983); Boyer v. Pool, 154 Tex. 586, 587, 280 S.W.2d 564, 565 (1955).
57. 694 S.W.2d at 16; see Tips v. Yancey, 431 S.W.2d 763, 765 (Tex. 1968); Nesbett v.
Nesbett, 428 S.W.2d 663, 664 (Tex. 1968); Hunt v. Knolle, 551 S.W.2d 764, 766-67 (Tex. Civ.
App.-Tyler 1977, no writ).
58. 694 S.W.2d at 16.
59. Id. at 15.
contractual will has a right to execute a new will without notice to the other party when both parties are still alive and the other party is sui juris.60
As a possible sequel to Estate of Murphy, in Todd v. Cartwright6 ' the
court similarly considered three wills of the testatrix: a contractual 1977 will made with her husband, and 1978 and 1982 wills made subsequent to her husband's death. The proponent of the contractual 1977 will contested the 1982 will. After probating the 1982 will, the court proceeded to impose a constructive trust over the estate for the benefit of the beneficiaries under the contractual 1977 will.62
Althougth the 1977 will contained no terms specifically describing a contract, the court imputed a contract based on the facts that the husband and wife's wills were virtually identical, the same witnesses signed them, the same lawyer drafted them, and the couple exe-cuted them within three months of each other.63
The court also found sig-nificant the fact that the wills made provision for the stepchildren of both spouses.64 The court apparently also considered oral testimony supporting contractual intent.65
Family Settlement Agreement. In Gregory v. Rice66 the court reversed and
remanded due to an improper jury instruction.67 The court, however,
com-mented favorably for appellee that circumstantial evidence supported the trial court's finding of an oral settlement agreement, and that no specific consideration was necessary. to make the family settlement agreement valid.68 The court overruled appellant's statute of frauds challenge based on Texas Business and Commerce Code section 8.319,69 which deals with se-curities contracts. By failing to comment on any other requirement of writ-ing, the court apparently held that an oral family settlement agreement may be valid. Arguably, however, a family settlement agreement must be in writ-ing to comply with the statute of frauds, especially if the agreement disposes of real property.70
60. Id.; see Magids v. American Title Ins. Co., 473 S.W.2d 460, 464 (Tex. 1971); Freeman
v. Freeman, 569 S.W.2d 626, 629 (Tex. Civ. App.-Eastland 1978, no writ). 61. 684 S.W.2d 154 (Tex. App.-Houston [14th Dist.] 1984, writ refd n.r.e). 62. Id. at 155.
63. Id. at 157. A will is not necessarily contractual, however, merely because it is exe-cuted jointly and the terms are mutual and reciprocal. Bishop v. Scoggins, 589 S.W.2d 151, 155 (Tex. Civ. App.-Tyler 1979, writ refd n.r.e.); Crain v. Mitchell, 479 S.W.2d 956, 958 (Tex. Civ. App.-Fort Worth 1972, writ dism'd); Ellexson v. Ellexson, 467 S.W.2d 515, 520 (Tex. Civ. App.-Amarillo 1971, no writ); Curtis v. Aycock, 179 S.W.2d 843, 847 (Tex. Civ. App.-Waco 1944, writ refd w.o.m.).
64. 684 S.W.2d at 157. Courts have held mutual bequests to children of prior marriages to be evidence of a contractual will. Trlica v. Bunch, 642 S.W.2d 540, 543 (Tex. Civ. App.-Dallas 1982, no writ); Knolle v. Hunt, 551 S.W.2d 755, 760 (Tex. Civ. App.-Tyler 1977, writ refd n.r.e.).
65. See 684 S.W.2d at 157-58.
66. 678 S.W.2d 603 (Tex. App.-Houston [14th Dist.] 1984, writ refd n.r.e). 67. Id. at 606.
68. Id. at 607; see Wedengartner v. Reichert, 218 S.W.2d 304, 310 (Tex. Civ. App.-Waco 1948, writ refd n.r.e.).
69. TEX. Bus. & COM. CODE ANN. § 8.319 (Vernon 1968).
WILLS AND TRUSTS
Will Construction. The testatrix's statement that a beneficiary "shall have
complete charge of my home" and "all contents" created a life estate accord-ing to the court in Taliaferro v. Mayer.?1 The court reasoned that the right to absolute custody, without the power to dispose of the property, indicated a limited devise.7 2 Relying on the strong presumption in Texas against intes-tacy, the court in Wilkins v. Garza73 held that a lapsed legacy passed through the will's residuary clause and not by intestacy.7 4 The court effec-tively held that a court presumes a lapsed legacy to pass to the beneficiary of the residuary clause unless the testator expresses a contrary intention in the will.7" Although the residuary clause purported to dispose of those assets not specifically mentioned, the court determined that the testatrix intended to include the lapsed legacy in the residuary clause and to avoid intestacy completely.76
In a significant decision the supreme court ruled that the designation of an agent in a will to broker real estate was merely precatory language, and not binding on the estate. In Kelly v. Marlin77 the will provided that Marlin should receive a six percent commission upon the testator's widow's sale of any land devised to her under the will. The executor, with the widow's par-ticipation, sold certain land of the estate for ten million dollars. The execu-tor, however, paid a commission to the widow's son from a previous marriage and refused to pay Marlin any commission. The trial court denied Marlin's claim for commission, but the court of appeals reversed and ren-dered for Marlin on the basis that he was a conditional beneficiary.78 The supreme court reversed the appellate court and denied the commission.79 The supreme court reasoned that the testamentary provision did not contain the traditional words of limitation on a fee simple estate,80 and that the pro-vision would force the widow to perform a nondelegable duty.8 1 After the
71. 681 S.W.2d 882 (Tex. App.-Fort Worth 1984, no writ).
72. Id. at 884-85; see Lawrence v. Lawrence, 229 S.W.2d 219, 222 (Tex. Civ. App.-Fort Worth 1950, writ ref'd n.r.e.).
73. 693 S.W.2d 553 (Tex. App.-San Antonio 1985, no writ). 74. Id. at 556.
75. See Shriners Hosp. For Crippled Children v. Stahl, 610 S.W.2d 147, 152 (Tex. 1980); Kuehn v. Bremer, 132 S.W.2d 295, 297-98 (Tex. Civ. App.-Waco 1939, writ refd).
76. 693 S.W.2d at 556. When a will contains a residuary clause, a strong presumption exists against intentional as well as unintentional intestacy. Morris v. Finkelstein, 442 S.W.2d 452, 455 (Tex. Civ. App.-Houston [14th Dist.] 1969, writ ref'd n.r.e.); Goggans v. Simmons, 319 S.W.2d 442, 445 (Tex. Civ. App.-Fort Worth 1958, writ refd n.r.e.).
77. 28 Tex. Sup. Ct. J. 410 (May 8, 1985). This decision has not yet been released for official publication.
78. Marlin v. Kelly, 678 S.W.2d 582, 588 (Tex. App.-Houston [14th Dist.] 1984). 79. Kelly v. Marlin, 28 Tex. Sup. Ct. J. 410, 410 (May 8, 1985).
80. By contrast, note that a will requiring a devisee to pay a fixed sum of money to an-other person creates an enforceable charge on the devised land. Rubio v. Valdez, 603 S.W.2d 346, 347-48 (Tex. Civ. App.-Eastland 1980, writ refd n.r.e.); Conway v. Estes, 346 S.W.2d 374, 375 (Tex. Civ. App.-Fort Worth 1961, no writ).
81. 28 Tex. Sup. Ct. J. at 411. The court specified three classes of duties as being nondele-gable: (1) duties that call for the personal services of the original obligor; (2) duties premised on the artistic skill or unique abilities of a party, such as a contract to paint a picture; and (3) duties that involve a close personal relationship, such as duties owed by an attorney to his client, a physician to his patient, or a broker to his principal. Id. at 412.
court determined that the commission was not a devise, the court character-ized the provision as an attempt to force the widow into a fiduciary
relation-ship with Marlin through acceptance of her devise.8 2 The court held that
contract law protects parties from being forced into personal service
con-tracts and fiduciary relationships without the parties' mutual consent.8 3 The
court noted that a testamentary designation of an attorney to represent an
estate is also precatory language.8 4
Despite the Texas presumption against intestacy,8 5 the court in Kaufhold
v. McIver 6 construed an unambiguous will as making no provision for the
disposition of real property of the testatrix.8 7 Apparently the testatrix
mis-takenly left out the residuary clause in her will and provided only for specific bequests of personal effects and devise of her homestead. Given evidence that the testatrix was well-aware that real property was distinct from per-sonal property, the court held that her bequest of perper-sonal effects only
dis-posed of her personal property.88 The unmentioned real property therefore
passed by intestacy.8 9 When construing the will the court held that the
tes-tatrix's mistake of failing to include a residuary clause was immaterial.90
The presence of ambiguity in a will, however, as demonstrated in Howard
v. McCulley,9 1 allows the examining court to construe the will so as to avoid intestacy. Although the trial court rendered a summary judgment denying probate because of unfulfilled contingencies in the will, the Dallas appellate
court seized on a relatively weak ambiguity and allowed probate.92 The
ap-pellate court cited the general rule that if the will is open to two construc-tions the court should interpret the will in such a way as to prevent
intestacy.9 3 The court held that certain ambiguous contingencies were met
so as to activate the testate disposition.94
The Dallas appellate court faced a strikingly similar situation in Nash v.
Corpus Christi National Bank.95 In that case the appellant challenged a summary judgment of intestacy under a contingent will. The Nash will, however, did not contain any of the ambiguity present in the Howard will,
82. Id.
83. Id. at 412; see Allen v. Camp, 101 Tex. 260, 260, 106 S.W. 315, 315 (1908); Moran v. Wotola Royalty Corp., 123 S.W.2d 692, 694 (Tex. Civ. App.-Fort Worth 1938, writ ref d).
84. 28 Tex. Sup. Ct. J. at 411.
85. See Shriners Hosp. for Crippled Children v. Stahl, 610 S.W.2d 147, 151 (Tex. 1980); Haile v. Holtzclaw, 414 S.W.2d 916, 922 (Tex. 1967); Briggs v. Peebles, 144 Tex. 47, 52, 188 S.W.2d 147, 150 (1945).
86. 682 S.W.2d 660 (Tex. App.-Houston [1st Dist.] 1984, writ ref'd n.r.e.) 87. Id. at 666.
88. Id. at 665. 89. Id. at 666.
90. Id. at 667; see Haile v. Holtzclaw, 414 S.W.2d 916, 922 (Tex. 1967); Carr v. Rogers, 383 S.W.2d 383, 385 (Tex. 1964); Selder v. Stewart, 461 S.W.2d 239, 244 (Tex. Civ. App.-Dallas 1970), afid, 473 S.W.2d 3 (Tex. 1971).
91. 686 S.W.2d 650 (Tex. App.-Dallas 1985, writ ref d n.r.e.). 92. Id. at 652.
93. Id.; see Ferguson v. Ferguson, 121 Tex. 119, 122, 45 S.W.2d 1096, 1097 (1931). 94. 686 S.W.2d at 652; for a good discussion of contingent wills, see Bagnall v. Bagnall, 148 Tex. 423, 424-33, 225 S.W.2d 401, 401-07 (1949).
WILLS AND TRUSTS
and the court therefore affirmed the trial court's ruling of intestacy.9 6 The
testator in Nash provided a disposition only in the event of the simultaneous death of his wife. The appellate court rejected the appellant's allegation that simultaneous death had occurred due to the fact that the wife was dead at
the time of the testator's death.97 The court held that the contingency
neces-sary to validate the will had not occurred.9 8
An appellate court also construed a simultaneous death contingency in
Formby v. Bradley.99 In that case the appellant unsuccessfully, albeit cre-atively, alleged that simultaneous death had occurred due to the divorced status of the testator and his former wife at the time of the testator's death. Although Probate Code section 69(b)100 provides that a court should not consider a person who is divorced from the decedent to be a surviving spouse, the court reasoned that a divorce that occurred five years before the
testator's death was not simultaneous with his death.'0' Since simultaneous
death of the testator and his former wife had not occurred, the contingent alternate provisions in the will were inapplicable, rendering the designation
of executor useless.'02 The surviving wife of the testator accordingly sought
to exercise her preferential right to have the court appoint her administratrix under Probate Code section 77.103 Both the trial court and the appellate court disqualified the surviving wife, however, due to conflicts of interest between herself and the heirs, conflicts that arose largely from her effort to characterize certain assets as community property over the heirs'
objections. 104
In two very similar cases, the supreme court reversed the Fort Worth and San Antonio appellate courts and held that certain joint wills were
contrac-tual. In Odeneal v. Van Horn'0 5 and Wiemers v. Wiemers'0 6 the surviving
spouses had probated the joint wills in question upon the death of the first spouse. Subsequently, the surviving spouse or the surviving spouse's benefi-ciaries filed declaratory judgment actions to free them from any binding ef-fect of the probated wills. The supreme court held that the joint wills were contractual on their faces because both spouses executed the wills and the wills set forth a reciprocal, mirror-image plan to dispose of all of their
com-bined estate.'07 Since both couples executed their wills before September 1,
96. Id. at 119.
97. Id.
98. Id. For a similar ruling, see Smith v. Williams, 449 S.W.2d 359, 361 (Tex. Civ. App.-Beaumont 1969, writ refd n.r.e.).
99. 695 S.W.2d 782 (Tex. App.-Tyler 1985, writ requested).
100. TEX. PROB. CODE ANN. § 69(b) (Vernon 1980) provides: "A person who is divorced from the decedent or whose marriage to the decedent has been annulled is not a surviving spouse unless, by virtue of a subsequent marriage, the person is married to the decedent at the
time of death."
101. 695 S.W.2d at 784. The court indicated, however, that the court would equate divorce with prior death of the testator's wife if prior death had been a contingency in the will. Id.
102. Id.
103. TEX. PROB. CODE ANN. § 77 (Vernon 1980).
104. 695 S.W.2d at 785.
105. 678 S.W.2d 941 (Tex. 1984). 106. 683 S.W.2d 355 (Tex. 1984).
1979, the requirement of Probate Code section 59A'0 8 that the wills
specifi-cally state the existence of a contract did not apply.'0 9
Although the parties apparently did not raise the issue, the Odeneal will
disposed of all property that the survivor owned upon his or her death. 0
The full legal and practical impact of such an attempt to dispose of property
acquired by one spouse after the other spouse's death is unclear. Probate of a joint and contractual will, however, effectively renders the surviving spouse incapable of writing a new will."' Furthermore, a new spouse apparently would have no interest whatsoever in either the community or the separate property of the surviving spouse," t2 other than a homestead interest." t3
In Traylor v. Unitedbank Orange" 14 a statute of limitations and principles
of estoppel barred trust beneficiaries from invalidating a testamentary trust
for any violation of the rule against perpetuities. 15 The court held that the
beneficiaries' attempt to invalidate the trust was in effect a will contest, and
that the statute of limitations governing will contests barred the suit. 16 In
addition, the court held that acceptance of trust benefits estopped the benefi-ciaries from challenging the trust." 17
II. NONTESTAMENTARY TRANSFERS
Despite the permissive provisions of Probate Code section 46(b),1 8 the
court in Jameson v. Bain"19 reaffirmed the pre-section 46(b) rule of Maples v.
Nimitz 20 that a partition of community funds, in order to be valid, must occur separately and prior to the creation of a joint tenancy with right of
108. TEX. PROB. CODE ANN. § 59A (Vernon 1980).
109. One should keep in mind that, although the supreme court concluded that disposition and mutuality of the wills demonstrated sufficient evidence of contractual intent, § 59A(b) specifies that the mere execution of a joint will containing contractual wording is no longer sufficient to prove a contract. TEX. PROB. CODE ANN. § 59A(b) (Vernon 1980) provides: "The execution of a joint will or reciprocal wills does not by itself suffice as evidence of the existence of a contract."
110. 678 S.W.2d at 942.
111. Magids v. American Title Ins. Co., 459 S.W.2d 238, 244 (Tex. 1970).
112. See Perl v. Howell, 650 S.W.2d 523, 525 (Tex. App.-Dallas 1983, writ ref'd n.r.e.); Wallace v. Turriff, 531 S.W.2d 692, 695 (Tex. Civ. App.-Tyler 1975, writ ref'd n.r.e.).
113. See Vermillion v. Haynes, 147 Tex. 359, 363, 215 S.W.2d 605, 608 (1949); Greene v. White, 137 Tex. 361, 385, 153 S.W.2d 575, 588 (1941).
114. 675 S.W.2d 802 (Tex. App.-Beaumont 1984, writ refd n.r.e.). 115. Id. at 805.
116. Id. Act of Aug. 9, 1876, ch. 84, § 3, 1876 Tex. Gen. Laws 94, 8 H. GAMMEL, LAWS OF TEXAS 930-31 (1898), repealed by Act of June 16, 1985, ch. 959, § 1, 1985 Tex. Sess. Law Serv. 7043, 7065 (Vernon), provided a four-year limitations period for contest of a will pro-bated prior to Dec. 31, 1955.
117. 675 S.W.2d at 805; see Trevino v. Turcotte, 564 S.W.2d 682, 685-86 (Tex. 1978). 118. TEX. PROB. CODE ANN. § 46(b) (Vernon Supp. 1986) provides:
A written agreement between spouses and a bank, savings and loan, credit union, or other financial institution may provide that existing funds or securities on deposit and funds and securities to be deposited in the future and interest and income thereon shall by that agreement be partitioned into separate property and may further provide that the property partitioned by that agreement be held in joint tenancies and pass by right of survivorship.
WILLS AND TRUSTS
survivorship.121 Although section 46(b) arguably permits a one-step parti-tion whereby a signature card or other account agreement may simultane-ously create a partition and a joint tenancy with right of survivorship, 122 the court in Jameson insisted that the partition must come first.123 For the
sim-ple reason that the parties signed the partition agreement on one side of the signature card after they had signed the side that established the survivor-ship account, the court held the partition invalid and therefore ineffective to activate the survivorship provision.124
In sharp contrast, however, the court also held that partition was unneces-sary to pass community funds to a surviving spouse if the spouses placed the funds in a revocable trust account with a spouse as trustee and the surviving spouse as beneficiary.'25 Strangely, the court relied on section 439(c)12 6 to
distinguish survivorship rights in joint accounts from trust accounts.127 Sec-tion 439(c), however, imposes no significantly greater burden for establishing survivorship rights in a joint account than in a trust account.128 Any re-quirements for valid partition should arguably apply equally to a joint ac-count and a trust acac-count. As the parties did not carry the case to the supreme court, however, this curious dichotomy remains unchallenged.
The lack of an executed signature card in Magee v. Westmoreland 129 pre-vented the establishment of a right of survivorship to a certificate of deposit payable jointly to the decedent and the claimant, even though the funds used to acquire the certificate of deposit indirectly came from a checking account that did provide for survivorship rights.130 The court emphasized the abso-lute requirements of Probate Code sections 46(a)'3' and 439(a)'32 of a signed written agreement for creation of survivorship rights.'33
According to the court in Chopin v. InterFirst Bank Dallas13 4, however, not even an executed signature card providing for payment at the depositor's death to a survivor can establish survivorship rights if the card fails to spec-ify ownership in the survivor.135 The court held that instructions on the signature card to pay the funds to the survivor did not vest ownership in the survivor. 136 The key factor to the court was the absence of words describing
121. 693 S.W.2d at 678-79.
122. McKnight, Family Law.- Husband and Wife, Annual Survey of Texas Law, 36 Sw. L.J. 97, 105 (1982).
123. 693 S.W.2d at 678-79. 124. Id. at 679.
125. Id. at 680.
126. TEX. PROB. CODE ANN. § 439(c) (Vernon 1980). 127. 693 S.W.2d at 680-81.
128. TEX. PROB. CODE ANN. § 439(c) (Vernon 1980).
129. 693 S.W.2d 612 (Tex. App.-San Antonio 1985, writ refid n.r.e.). 130. Id. at 616.
131. TEX. PROB. CODE ANN. § 46(a) (Vernon Supp. 1986). 132. Id. § 439(a) (Vernon 1980).
133. 693 S.W.2d at 615-16.
134. 694 S.W.2d 79 (Tex. App.-Dallas 1985, writ refd n.r.e.). 135. Id. at 84.
a joint tenancy or a right of survivorship. 137 The court further held that the mere creation of a joint account was not evidence of a depositor's inter vivos
gift to the survivor.138
III. ESTATE ADMINISTRATION
Jurisdiction. A definitive delineation of probate court jurisdiction continues
to elude Texas courts. In a fascinating about-face in Texas jurisprudence, the Texas legislature's one-sentence addition to Probate Code section
5A(b)13 9 partially overruled the Texas Supreme Court's resounding,
unani-mous opinion in Seay v. Hall.140 Justice Kilgarlin, in his thorough opinion
in Seay v. Hall, analyzed the legislative history of the sixty-third through the sixty-sixth legislative sessions and pertinent legal commentaries to reach a
conclusion that Probate Code section 5A14 1 confined probate court
jurisdic-tion to matters in which the controlling issue was the settlement, partijurisdic-tion,
or distribution of an estate. 142 Since survival and wrongful death actions do
not directly relate to the traditional settlement, partition, or distribution of an estate, Justice Kilgarlin reasoned that the legislature did not intend statu-tory probate courts to have any jurisdiction over survival and wrongful
death actions.143 Justice Kilgarlin concluded that the proper forum for
sur-vival and wrongful death actions, "[a]bsent the legislature's express man-date," was in state district courts.14 4
Responding promptly to this cue, the sixty-ninth legislature tacked onto section 5A(b) a single, innocuous-sounding sentence: "In actions by or against a personal representative, the statutory probate courts have
concur-rent jurisdiction with the district courts."'14 5 The legislature apparently
in-tended to rectify a part of the law set forth in Seay. The addition, however, only increases the jurisdictional confusion.
The focus of the supreme court in Seay was whether survival and
wrong-pay to either of them or upon the death of one to the survivor the funds represented by this certificate." Id.
137. Id. Contra William Marsh Rice Univ. v. Birdwell, 624 S.W.2d 661, 663 (Tex. Civ. App.-Houston [14th Dist.] 1981, no writ).
138. 694 S.W.2d at 84; see Kennedy v. Beasley, 606 S.W.2d 1, 3 (Tex. Civ. App.-Houston [1st Dist.] 1980, writ ref'd n.r.e.).
139. Act of June 15, 1985, ch. 875, § 1, 1985 Tex. Sess. Law Serv. 6429, 6429 (Vernon). 140. 677 S.W.2d 19 (Tex. 1984).
141. TEX. PROB. CODE ANN. § 5A (Vernon 1980).
142. 677 S.W.2d at 21-23; accord Wolford v. Wolford, 590 S.W.2d 769, 771 (Tex. Civ.
App.-Houston [14th Dist.] 1979, writ ref d n.r.e.); Bell v. Hinkle, 562 S.W.2d 35, 37-38 (Tex. Civ. App.-Houston [14th Dist.] 1978, writ ref'd n.r.e.); Sumaruk v. Todd, 560 S.W.2d 141, 144 (Tex. Civ. App.-Tyler 1977, no writ).
143. 677 S.W.2d at 25. Piper Aircraft Corp. v. Yowell, 674 S.W.2d 447 (Tex. App.-Fort Worth 1984, writ granted), contrasts an action for wrongful death and a survival action as follows: TEX. REV. CIV. STAT. ANN. art. 4671 (Vernon 1940) confers a wrongful death action upon the surviving husband, wife, child, and parents of a decedent; a survival action, however, is a common law action for damages that the decedent and his estate sustain as a result of the defendant's actions. 674 S.W.2d at 454.
144. 677 S.W.2d at 25.
145. Act of June 15, 1985, ch. 875, § 1, 1985 Tex. Sess. Law Serv. 6429, 6430 (Vernon)
WILLS AND TRUSTS
ful death actions were incident to an estate,'4 6 because a statutory probate court has jurisdiction only of matters incident to an estate.147
In light of
Seay courts can use two approaches to analyze the addition to section 5A(b). The simplest and clearest approach is to view the addition only as an altera-tion of the result in Seay without changing the normal incident to an estate analysis. Under this approach the legislature merely wished to allow parties to bring certain suits not traditionally incident to an estate, such as survival actions, in statutory probate court. Although wrongful death actions are not intrinsically actions by or against personal representatives, the death of a plaintiff or a defendant prior to the filing of the wrongful death action would automatically make the suit by or against a personal representative. Courts could determine statutory probate court jurisdiction based either on the "in-cident to an estate" test or on a new "action by or against a personal repre-sentative" test.'48
The addition was thus a simple and direct response to Justice Kilgarlin's cue, because the addition's only effect was to allow statu-tory probate courts the possibility of hearing actions by or against personal representatives. The problem with this approach, however, is the blunt fact that the legislature placed the addition in section 5A, which deals with the definition of matters incident to an estate, instead of in section 5, which deals with the basic jurisdiction of the various courts. Logically, the reason that the legislature placed the addition in section 5A was to avoid the creation of a new jurisdictional test as suggested in this first approach.
The broad second approach is to view the addition, not just as an altera-tion of the result in Seay, but as an alteraaltera-tion of the definialtera-tion of matters incident to an estate. This approach expands the Seay jurisdictional analy-sis, but does not create another one. The problem with this approach is that not only would the legislature have opened the statutory probate court doors to all actions by or against personal representatives, but the legislature would also have taken the radical step of potentially placing such actions within the exclusive jurisdiction of statutory probate courts. Taken in con-junction with the preceding sentence in section 5A(b),149 which provides that "[i]n situations where the jurisdiction of a statutory probate court is concurrent with that of a district court, any cause of action appertaining to estates or incident to an estate shall be brought in a statutory probate court rather than in a district court," the addition may conceivably mean that, in counties with statutory probate courts, parties must bring any action what-soever, by or against a personal representative, exclusively in a statutory court rather than in a district court. Thus, although the literal intent of the addition was simply to overrule Seay and allow permissive filing of actions by or against personal representatives in statutory probate court, construc-tion of the addiconstruc-tion in light of the total context of secconstruc-tion 5A may transform what was nonjurisdiction in Seay into exclusive jurisdiction. Such a broad
146. 677 S.W.2d at 23. 147. Id. at 24.
148. Obviously the two tests would overlap.
construction would cause great confusion among Texas lawyers in a myriad of areas, including forcible entry and detainer, eminent domain, personal injury, and other matters ordinarily heard outside of probate court. The authors prefer the first approach because that approach narrowly construes
the intent and effect of the addition and avoids the potential uproar of the
second approach. '5 0
The addition to section 5A(b) increases the confusion already surrounding construction of the sentence immediately preceding the addition. Numerous courts have held that this sentence bestows exclusive jurisdiction in the stat-utory probate court to hear matters incident to an estate, and that a district
court may not hear such matters.'5 1 The court in First State Bank v.
Bishop,152 however, construed this sentence to allow concurrent jurisdiction
in the statutory probate court and the district court to hear matters incident
to an estate. 153 The statutory probate court therefore did not have exclusive
jurisdiction of matters incident to an estate, but only dominant
jurisdic-tion. 154 One could bring suit on rejected claims against an administrator in
either district court or the statutory probate court, because sections 313155 and 5A(b), construed together, clearly established concurrent jurisdiction in
those two courts.156 The court emphasized, however, that by a plea in
abatement any party could have a suit dealing with matters incident to an
estate transferred from district court to the statutory probate court.157 The
court thus held that jurisdiction remained with the district court unless and
until a party's plea in abatement challenged jurisdiction.158 Although the
case turned upon waiver of procedural defects, the impact of the case lies in the court's finding of concurrent jurisdiction.
Clearly, the sentence could not logically refer to situations involving
con-150. Subsequent to the Survey period, through dictum in the footnote of a withdrawn opin-ion, Yowell v. Piper Aircraft Corp., 29 Tex. Sup. Ct. J. 164, 166 (Jan. 22, 1986), withdrawn, 29 Tex. Sup. Ct. J. 188 (Feb. 5, 1986), the supreme court indicated that the addition did not vest the statutory probate court with exclusive jurisdiction of all actions by or against a personal representative, but only established concurrent jurisdiction with the district court. The court withdrew the opinion upon motion of all parties.
151. Piper Aircraft Corp. v. Yowell, 674 S.W.2d 447, 456 (Tex. App.-Fort Worth 1984, writ granted); Seay v. Hall, 663 S.W. 2d 468, 472 (Tex. App.-Dallas 1983), afd in part and rev'd in part on other grounds, 677 S.W.2d 19 (Tex. 1984); Adams v. Calloway, 662 S.W.2d 423, 426 (Tex. App.-Corpus Christi 1983, no writ); Boman v. Howell, 618 S.W.2d 913, 916 (Tex. Civ. App.-Fort Worth 1981, no writ); Thomas v. Tollon, 609 S.W.2d 859, 861 (Tex. Civ. App.-Houston [14th Dist.] 1980, writ ref'd n.r.e.).
152. 685 S.W.2d 732 (Tex. App.-Houston [1st Dist.] 1985, writ rerd n.r.e.). 153. Id. at 736.
154. Id.
155. TEX. PROB. CODE ANN. § 313 (Vernon 1980). 156. 685 S.W.2d at 736.
157. Id. For a discussion of dominant/concurrent jurisdiction, see Curtis v. Gibbs, 511 S.W.2d 263, 267 (Tex. 1974).
WILLS AND TRUSTS
current jurisdiction if the statutory probate court in reality had exclusive jurisdiction and the district court had no jurisdiction. Although numerous cases159 contradict First State Bank, the supreme court's refusal of a writ for this case is some indication of approval. Furthermore, the supreme court's reference in Seay to dominant jurisdiction160 implies a determination against exclusive jurisdiction of statutory probate courts.
Similarly, the court in Smith v. Smith16 1 held that contestants can origi-nally file contested probate matters in district court even though the estate is pending in a constitutional county court.162 The court noted that Texas Probate Code section 5(b)163 controlled the district court's jurisdiction.164 Although section 5(b) provides for transfer to district court, the section does not mention original filing in district court. Nevertheless, the court in Smith effectively held that transfer from a county court was not a prerequisite to jurisdiction in the district court.'65 Apparently, the court felt that, if a con-tested probate matter can be transferred to district court, it can be filed there in the first place.
Once a constitutional county court has transferred administration to a dis-trict court under section 5(b), according to the court in Weldon v. Hill'66 the district court has full jurisdiction to hear all matters incident to the estate, including those matters not within the jurisdiction of the county court.'67 Although section 145(h)168 prohibits any further proceedings in the county court after the probate and filing of an inventory, the court construed section 5(b) to provide that the district court upon transfer could hear the proceed-ing as if the beneficiary had originally filed the contest in the district court.169 The court also held that section 145(h) does not apply to district
courts.'7 0
Moreover, as in First State Bank, the court affirmed that the
dis-159. Piper Aircraft Corp. v. Yowell, 674 S.W.2d 447, 456 (Tex. App.-Fort Worth 1984, writ granted); Seay v. Hall, 663 S.W.2d 468, 472 (Tex. App.-Dallas 1983), affd in part and rev'd in part on other grounds, 677 S.W.2d 19 (Tex. 1984); Adams v. Calloway, 662 S.W.2d 423, 426 (Tex. App.-Corpus Christi 1983, no writ); Boman v. Howell, 618 S.W.2d 913, 916 (Tex. Civ. App.-Fort Worth 1981, no writ); Thomas v. Tollon, 609 S.W.2d 859, 861 (Tex. Civ. App.-Houston [14th Dist.] 1980, writ ref'd n.r.e.).
160. 677 S.W.2d at 21, 24.
161. 694 S.W.2d 426 (Tex. App.-Tyler 1985, writ refd n.r.e.). 162. Id. at 430.
163. TEX. PROB. CODE ANN. § 5(b) (Vernon Supp. 1986). 164. 694 S.W.2d at 430.
165. See id. Illustrating the continual confusion over concurrent jurisdiction, the court expressly overruled its contrary holding in Nichols v. Prejean, 673 S.W.2d 394, 396 (Tex. Civ. App.-Tyler 1984, no writ). 694 S.W.2d at 430.
166. 678 S.W.2d 268 (Tex. App.-Fort Worth 1984, writ ref'd n.r.e.). 167. Id. at 275.
168. TEX. PROB. CODE ANN. § 145(h) (Vernon 1980) provides:
When an independent administration has been created, and the order appointing an independent executor has been entered by the county court, and the inven-tory, appraisement, and list aforesaid has been filed by the executor and ap-proved by the county court, as long as the estate is represented by an independent executor, further action of any nature shall not be had in the county court except where this Code specifically and explicitly provides for some action in the county court.
trict court had concurrent jurisdiction with the district court sitting in pro-bate and that the failure of the appellant to file an effective plea in apro-batement waived any challenge to jurisdiction. 17 1 Contrary to First State Bank,
how-ever, the court in Weldon declared that the transfer upon a plea in abatement was not automatic; the court first had to determine that the proceedings involved the same parties and the same controversy.172 Since the
declara-tory judgment sought in Weldon was completely different from any relief sought in the pending probate proceeding, transfer upon plea in abatement was improper.173 The court cited Curtis v. Gibbs174 for support, as did the court in First State Bank, although that court held that transfer, upon objec-tion, was automatic.'75 The contradictory holdings are distinguishable, however, in that First State Bank involved a statutory probate court and the effect of section 5A(b), while Weldon involved a district court sitting in pro-bate, where section 5A(b) was inapplicable.
Disqualification of Executor. In a case of first impression, the court in Smith v. Christley176 construed Probate Code section 78(c)177
to disqualify a con-victed felon from serving as executor, even though he was in the process of appealing the conviction.178 The court reasoned that the position of in-dependent executor was not subject to extensive court administration, and that allowing a person convicted of a felony to serve as executor could ad-versely affect third parties.'79 The court also relied on section 149C(a) (5),180 which allows removal of an independent executor if a court sentences him to prison.
Claims. Although the Probate Code imposes no formal requirements for
presentment of claims to independent executors,' 8
' and requires no particu-lar form of presentment prior to suit on a claim,182 all claims against an
independent administration ultimately will be subject to classification under
171. Id. at 278.
172. Id. at 277.
173. Id. at 278.
174. 511 S.W.2d 263, 267 (Tex. 1974).
175. 685 S.W.2d at 736.
176. 684 S.W.2d 158 (Tex. App.-Houston [14th Dist.] 1984, writ refd n.r.e.).
177. TEX. PROB. CODE ANN. § 78 (Vernon 1980) provides:
No person is qualified to serve as an executor or administrator who is: . . .(c) a convicted felon, under the laws either of the United States or of any state of territory of the United States, or of the District of Columbia, unless such person has been duly pardoned, or his civil rights restored, in accordance with law
178. 684 S.W.2d at 160. 179. Id.
180. TEX. PROB. CODE ANN. § 149C(a)(5) (Vernon 1980) allows the probate court to re-move an independent executor when "he becomes incompetent, or is sentenced to the peniten-tiary, or from any other cause becomes legally incapacitated from properly performing his fiduciary duties."
181. See Bunting v. Pearson, 430 S.W.2d 470, 472 (Tex. 1968); State v. Traylor, 374 S.W.2d 203, 204-05 (Tex. 1963); 17 M. WOODWARD & E. SMITH, supra note 158, § 501, at 412-13 (Texas Practice 1971).
WILLS AND TRUSTS
section 322.183 A criterion for designation of a class 4 claim184 under section
322 is presentation to the representative within six months after his
appoint-ment.185 In Alterman v. Frost National Bank'86 a claimant sent a letter
within six months after the decedent's death to the independent executor indicating the amounts claimed on notes signed by the decedent. Both par-ties agreed that the letter, if a claim, was legally exhibited so as to fall within class 4. The court resolved the key issue, whether the letter to the
independ-ent executor constituted a claim, in favor of the claimant.187 The court held
that the Probate Code required no particular form of claim against an in-dependent executor, and that a simple itemization of debts sufficed as a claim
under section 322.188
In a split decision the supreme court in Hofer v. Lavender189 construed the
Texas survival statute'90 and the Wrongful Death Act'9 1 to allow the estate
of a decedent to obtain an award of exemplary damages against the estate of
a deceased tortfeasor.19 2 The supreme court construed the Texas survival
statute broadly to allow the estate of the wronged decedent to recover
exem-plary damages for virtually any malicious injury'93 from the wrongdoer's
estate. 194 Thus, under the Texas survival statute, the death of either plaintiff
or defendant apparently will not affect claims for exemplary damages.
Jury. The court in Maddox v. Surber'95 held that the Probate Code provides
no right to jury trial to determine probate venue.196 The general venue
stat-ute'97 applies to all civil proceedings, including probate proceedings, in the
absence of a conflict with a specific statutory provision.198 The court
deter-mined that Probate Code section 21199 did not add to or conflict with the
183. TEX. PROB. CODE ANN. § 322 (Vernon 1980); see Bunting v. Pearson, 430 S.W.2d
470, 473 (Tex. 1968).
184. TEX. PROB. CODE ANN. § 322 (Vernon 1980) defines five classes of claims against an estate. Class 4 claims are: "All other claims legally exhibited within six months after the original grant of letters testamentary or of administration." Id.
185. Id.
186. 675 S.W.2d 619 (Tex. App.-San Antonio 1984, no writ). 187. Id. at 622.
188. Id.
189. 679 S.W.2d 470 (Tex. 1984).
190. TEX. CIV. PRAC. & REM. CODE ANN. § 71.021 (Vernon Pam. Supp. 1986). 191. Id. §§ 71.001-.011.
192. 679 S.W.2d at 475.
193. Id.; accord Castleberry v. Goolsby Bldg. Corp., 617 S.W.2d 665, 666 (Tex. 1981); Folsom Inv., Inc. v. Troutz, 632 S.W.2d 872, 877 (Tex. App.-Fort Worth 1982, writ refd
n.r.e.); Pace v. McEwen, 574 S.W.2d 792, 801 (Tex. Civ. App.-El Paso 1978, writ refd
n.r.e.); Houston-American Life Ins. Co. v. Tate, 358 S.W.2d 645, 649 (Tex. Civ. App.-Waco 1962, no writ). Contra First Nat'l Bank v. Hackworth, 673 S.W.2d 218, 220 (Tex. App.-San Antonio 1984, no writ).
194. 679 S.W.2d at 476. The supreme court implicitly overruled contrary holdings in Wright's Administratrix v. Donnell, 34 Tex. 291, 298 (1870), and Sears Roebuck & Co. v.
Jones, 303 S.W.2d 432, 437 (Tex. Civ. App.-Waco 1957, writ ref'd n.r.e.). See 679 S.W.2d at
477 (Spears, J., dissenting).
195. 677 S.W.2d 226 (Tex. App.-Houston [1st Dist.] 1984, no writ). 196. Id. at 228.
197. TEX. CIV. PRAC. & REM. CODE ANN. § 15.001 (Vernon Pam. Supp. 1986). 198. See id.
general venue statute.2 ° °
Appealability. In Lurie v. Atkins20 1 the court held that an order allowing interim fees to a temporary administrator was interlocutory and not appeala-ble.20 2 The court concluded that the fee was an advance.20 3
Allowance of the fee did not become a final, appealable judgment until approval of the final account.2°4
Surviving Spouse Versus Estate. With a succinct opinion in Anderson v. Gilli-land205 the supreme court has neatly dispatched the irksome issue of a sur-viving spouse's reimbursement to her deceased spouse's estate for improvements to her separate land. The supreme court ruled once and for all that the proper measure for a claim for reimbursement for money spent by one estate for improvements to another estate is the enhanced value of the benefited estate.20 6 With this conclusion the supreme court overruled both the position taken in several courts that the proper measure of reimburse-ment was enhancereimburse-ment or cost, whichever was less,20 7 and the position that the proper measure of reimbursement was cost, regardless of enhance-ment.20 8 This opinion will apply to divorce as well as probate cases.
In Smith v. Smith20 9 an appellate court reaffirmed the presumption in-stalled in Family Code section 5.02210 that the assets of a decedent's estate are community property.211
In Hunter v. Clark2 12 another appellate court provided an excellent dis-cussion of homestead rights and waiver of homestead. The court inquired whether a premarital agreement waived homestead rights pursuant to Fam-ily Code section 5.45,213 and ruled against waiver because the wording of the premarital agreement did not provide the clear and convincing evidence that section 5.45 requires to prove waiver.21 4 The agreement included no express
200. 677 S.W.2d at 228.
201. 678 S.W.2d 510 (Tex. App.-Houston [14th Dist.] 1984, no writ). 202. Id. at 511.
203. Id.
204. Id. Annual accounts are subject to correction until approval of the final account. See In re Higginbotham's Estate, 192 S.W.2d 285, 289 (Tex. Civ. App.-Tyler 1946, no writ); Cartledge v. Billalba, 154 S.W.2d 219, 226 (Tex. Civ. App.-El Paso 1941, writ refd w.o.m.).
205. 684 S.W.2d 673 (Tex. 1985). 206. Id. at 675.
207. Hale v. Hale, 557 S.W.2d 614, 615 (Tex. Civ. App.-Texarkana 1977, no writ); Tre-vino v. TreTre-vino, 555 S.W.2d 792, 799 (Tex. Civ. App.-Corpus Christi 1977, no writ); Girard v. Girard, 521 S.W.2d 714, 718 (Tex. Civ. App.-Houston [1st Dist.] 1975, no writ).
208. In re Higley, 575 S.W.2d 432, 434 (Tex. Civ. App.-Amarillo 1978, no writ); Cervantes v. Cervantes, 76 S.W. 790, 793 (Tex. Civ. App. 1903, writ dism'd).
209. 694 S.W.2d 426 (Tex. App.-Tyler 1985, writ refd n.r.e.).
210. TEX. FAM. CODE ANN. § 5.02 (Vernon 1975) provides: "Property possessed by either spouse during or on dissolution of marriage is presumed to be community property."
211. 694 S.W.2d at 433; accord Maples v. Nimitz, 615 S.W.2d 690, 691 (Tex. 1981); Latham v. Allison, 560 S.W.2d 481, 484 (Tex. Civ. App.-Fort Worth 1977, writ refd n.r.e.).
212. 687 S.W.2d 811 (Tex. App.-San Antonio 1985, no writ). 213. TEX. FAM. CODE ANN. § 5.45 (Vernon Supp. 1986).
WILLS AND TRUSTS
reference to homestead or more general language that could include home-stead. The court further held that, even if the terms did support waiver, the lack of legal representation of the surviving spouse prevented such waiver from being informed consent as required under section 5.45.215
IV. HEIRSHIP
Appealability. A summary judgment determining all heirs is a final
judg-ment subject to appeal, according to the court in Estate of Wright.2 16 A trial court's subsequent determination that the summary judgment was not final cannot reopen the heirship determination if the summary judgment did, in fact, completely adjudicate heirship.21 7 Also, the fact that the heirship pro-ceeding was part of general estate propro-ceedings did not necessitate a sever-ance for appeal or in any way affect the right of appeal under Probate Code section 55(a).2 18 Conversely, in Haynes v. Edwards2 19 a partial determina-tion of heirship for purposes of establishing standing in a will contest was not a final judgment. Proving his status as an heir through adoption by estoppel, the contestant established his standing in a preliminary hearing. Upon appeal of the preliminary heirship determination the supreme court reversed the holding of the court of appeals that the preliminary heirship determination was a final judgment.220 The court reasoned that the heirship determination was, in effect, a judgment overruling the proponent's motion to dismiss the contest for lack of interest in the estate.221 As a mere prelimi-nary to the contest of the will the heirship determination was therefore interlocutory.222
Inheritance by Illegitimates. The temporarily slumbering clash between
Pro-bate Code section 42(b)2 2 3 and the equal protection clause of the fourteenth amendment to the United States Constitution224 has once again erupted, but the United States Supreme Court may resolve the conflict this year. In Reed
v. Campbell225 an illegitimate daughter sought to inherit a portion of her intestate father's estate. The daughter claimed a right to inherit on the basis that her father had recognized her as his child. Following a line of recent
firm belief or conviction as to the truth of the allegations sought to be established." State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979).
215. 687 S.W.2d at 813.
216. 676 S.W.2d 161 (Tex. App.-Corpus Christi 1984, writ rerd n.r.e.).
217. Id. at 163.
218. TEX. PROB. CODE ANN. § 55(a) (Vernon 1980). 219. 698 S.W.2d 97 (Tex. 1985).
220. Id. at 98.
221. Id.
222. Id.; cf Fischer v. Williams, 160 Tex. 342, 347, 331 S.W.2d 210, 213 (1960) (holding that overruling motion to dismiss for failure to state an interest was interlocutory).
223. TEX. PROB. CODE ANN. § 42(b) (Vernon 1980) (paternal inheritance). 224. U.S. CONST. amend. XIV, § 1.
225. 682 S.W.2d 697 (Tex. App.-El Paso 1984, writ ref'd n.r.e.), cert. granted, 106 S. Ct. 565, 88 L. Ed. 2d 550 (1985) (No. 85-755); see also In re Estate of Castaneda, 687 S.W.2d 465, 466 (Tex. App.-San Antonio 1985, no writ) (holding that neither § 42(b) nor § 3(b) allow inheritance by a recognized illegitimate child).
